Should You Consider a Postnuptial Agreement?

By
Roscich & Martell Law Firm, LLC
|February 23, 2018

A postnuptial agreement, like a
prenuptial agreement, is a legal contract that sets forth how marital property should be divided
if the couple divorces. The only difference is that a prenuptial agreement
is executed before marriage, and a postnuptial agreement is executed after
the parties are already married.

Illinois is an equitable property state, which means that marital property
is divided in “just proportions,” and not necessary split
50/50. Courts consider a myriad of factors when determining how to divide
marital property, which means neither party goes into a divorce feeling
secure in their economic status. That is why many couples execute prenuptial
and postnuptial agreements -- so they can feel secure about their economic futures.

Both prenuptial and postnuptial agreements also simplify divorces and save
the parties money and time -- and the parties can avoid the emotional
toll of going through litigation.

Under What Circumstances Would You Execute a Postnuptial Agreement?

There are several instances in which you might consider executing a postnuptial
agreement, like if you thought about negotiating a prenuptial agreement
but ran out of time before the wedding. Rest assured that you can still
negotiate reasonable terms after the fact.

Here are other examples of when you might want a postnuptial agreement:

One spouse decides to open a new business and does not want to worry about
dividing these assets in the event of a divorce. The couple can execute
a postnuptial agreement that ensures all of these business assets fall
to the business owner if the marriage ends.

One spouse receives a large inheritance from a family member. A family
inheritance can be sentimental, and the inheritor might not want those
assets going to his or her spouse in a divorce. A postnuptial agreement
is a way to ensure that those assets belong solely to the inheritor post-marriage.

One or both spouses is considering divorce. You can determine how to divide
the marital property before filing for divorce.

However, a postnuptial agreement does not have to be a document that solely
contemplates divorce. Executing a postnup is also a way for the couple
to analyze their financial assets and codify each partner’s obligations.
For example, the couple might examine how they spend and save money and
whether one partner feels that these habits are inequitable. A postnup,
like a prenup, could make both partners feel more economically comfortable.

The Downsides of Executing a Postnuptial Agreement

It is important to remember that a postnuptial (and a prenuptial) agreement
is a binding legal contract. You cannot easily back out of it once the
document has been signed. That is why an experienced attorney should always
review the agreement to make sure the terms are not unfair to you.

Even though a postnuptial agreement is designed to avoid litigation, one
or both parties may challenge its validity in court. If the agreement
is not drafted or executed according to Illinois contract law then it
may be found void during a divorce proceeding.

Contact Us Today for Assistance

Never commit to a prenuptial or postnuptial agreement before discussing
the terms with an experienced attorney. The experienced
Naperville family law attorneys at the Roscich & Martel Law Firm, LLC, can review the terms of your
agreement or help you craft an agreement that best suits your needs. Contact
us today for a free consultation.

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